T. Rukmini Devi vs The State Of Andhra Pradesh,
2022 Latest Caselaw 5519 AP

          HON'BLE DR. JUSTICE K. MANMADHA RAO

                  WRIT PETITION No.23424 of 2022
ORDER :

This petition is filed under Article 226 of the Constitution

of India for the following relief:-

"...to issue an appropriate Writ order or direction more particularly one in the nature of Writ of Mandamus a Declare the rejection of the request of the petitioner for providing family pension by the 5th respondent his through his letter in Lr.S.A.No.56/A1/Pensions/Special Ce11/2022-23, dated 30.05.2022 stating "The applicant is not eligible for the family pension in the category of widow daughter wide reference 2nd cited as she crossed the age limit of 45 years", as illegal, irregular, irrational, arbitrary and violative of Articles 14, 16 and 21 of Constitution of India and contrary to A.P.Pension Rules 1980 and consequently direct the respondents to release the petitioner's family pension benefits including the arrears from the date of the death of petitioner's mother Chevuri Chennamma along with appropriate interest up to the date of releasing the pension and pass such other order or orders......."

2. Brief facts of the case are that the petitioner is the first

daughter of one Chevuri Innaiah (late) and her father worked as

Forest Guard in Kakidala-Daida Macharla range and retired from

service 30.06.1993 and was getting pension. The petitioner's

father died on 21.07.2002 by leaving his wife and children. The

petitioner's mother performed the marriages of her children

including the petitioner. The petitioner's marriage was performed

with one Telakapalli Govindu of Karampudi Village of Guntur

District and her husband died on 17.07.1998 during the life time

of petitioner's father. After death of the petitioner's husband

Govindu, the petitioner father Chevuri Innaiah took her to his

house to look after her. The petitioner did not marry again and

was depending upon her parents. The petitioner's mother was

getting family pension with the PPO No.00702-FOREST-FP. The

petitioner was also residing with her mother as she is not earning

member in the family. The petitioner's mother also died on

01.08.2016. Immediately by submitting the death certificate of

the petitioner's mother, family member certificate dated

14.10.2016 issued by the Tahsildar, Nakarikallu and other

required documents to the 6th respondent, who in turn, sent the

application along with other required documents to the 5th

respondent. Subsequently, the 5th respondent sanctioned the

arrears amount and sent to the Sub Treasury Office, Narasaraopet

for disbursement. The Sub Treasury Office paid an amount of

Rs.3,264/- on 18.10.2016 to the petitioner and stated that the

pension will be granted soon. Thereafter, the Divisional Forest

Officer sent a letter vide Ref.No.4013/2019/Sl., dated 5.2.2020

stating that he complied certain objections by sending required

documents to the 5th respondent. Thereafter, the 5th respondent

sent a letter in Lr.S.A.No.56/A1/Pensions/Special Cell.2022, dated

30.05.2022 stating that "the applicant is not eligible for the family

pension in the category of widow daughter vide 2nd reference as she

crossed the age limit of 45 years". The 5th respondent also cited the

G.O.Ms.No.152 Finance (HR III-Pension), dated 25.11.2019

prescribing the age limit for family pensioners as 45 years and the

same is struck down by this Court in W.P.No.19671 of 2020 and

batch dated 5.3.2021 declaring the same as violative of Article, 14,

21 and 300-A of the Constitution of India. Questioning the same,

the present writ petition is filed.

3. No counter affidavit is filed by the respondents till today

and adjourning the matter for filing counter affidavit, again learned

Government Pleader appearing for the respondents sought time for

filing counter affidavit. It appears that the respondents did not

choose to file counter affidavit and failed to comply with the Rule

12(1) of the Writ Proceedings Rules, 1977. Following the decision of

erstwhile High Court of Andhra Pradesh in "J. Ramachandraiah

Vs. Government of Andhra Pradesh and Others"1 this Court

finds that the respondents violated the Rule 12 of the Writ

Proceedings Rules, 1977. Therefore, this Court without expecting

counter affidavit by the respondents, decided to dispose of the

matter.

4. Heard learned counsel appearing for the petitioner and

learned Government Pleader for Finance appearing for the

respondents No.1 and 4; Mr. Swarna Seshu, learned counsel

appearing for the respondents No. 2, 3 and 5 and learned

Government Pleader for Forest appearing for the respondent No.6.

5. On hearing, learned counsel for the petitioner submits

that the issue involved in this petition is squarely covered by the

order of learned Single Judge of this Court in W.P.No.19671 of

2020 and batch, dated 05.03.2021, and hence, requests this Court

to pass similar order in this petition also.

6. Learned Government Pleader appearing for the

respondents reported no objection to allow the present writ petition

on the same lines.

2012 SCC Online AP 730: (2012) 4 ALD 366

7. In view of the submission made by both the learned

counsels and upon perusing the entire material available on

record, this Court deems fit to allow the present writ petition also

in terms of the said order.

8. Accordingly, the Writ Petition is allowed setting aside the

impugned letter in Lr.S.A.No.56/A1/Pensions/Special Cell/2022-

23, dated 30.05.2022 issued by the 5th respondent. Further, the

concerned respondent authorities are directed to pay the family

pension benefits including the arrears to the petitioner from the

date of death of petitioner's mother-Chevuri Chennamma with

interest at the rate of 6% per annum from the day on which the

family pension was stopped to the petitioner, within eight (08)

weeks from today. No order as to costs.

9. Consequently, miscellaneous applications, pending if

any, shall stand closed.

10. The Registry is directed to attach a copy of the order in

W.P. No.19671 of 2021 and batch, dated 05.03.2021 to this order.

______________________________ DR. K. MANMADHA RAO, J.

Date : 18-08-2022 Gvl

HON'BLE DR. JUSTICE K. MANMADHA RAO

WRIT PETITION No.23424 OF 2022

Date : 18.08.2022

Gvl

The petitioners impugned G.O.Ms.No.152 Finance (HR.III - Pension) Department

dated 25.11.2019 in all the writ petitions. The petitioners in Writ Petition

No.19671 of 2020 and other petitioners are dependents on their parents due to

divorce dissolving the marriage between the petitioners and their husbands or due

to demise of their husbands. They were receiving family pension being the

dependents on father/mother, who served as Government Servant and retired from

service, as per their eligibility in terms of G.O.Ms.No.315 Finance (Pension-I)

Department dated 07.10.2010. While the matter stood thus, an arbitrary decision

as taken by the State and issued G.O.Ms.No.152 Finance (HR.III - Pension)

Department dated 25.11.2019 amending G.O.Ms.No.315 Finance (Pension-I)

Department dated 07.10.2010 disabling the widowed/divorced daughter being

family pensioners, who attained the age of 45 years or whose children became

majors. By virtue of G.O.Ms.No.315 Finance (Pension-I) Department dated

07.10.2010 all the petitioners became eligible for family pension being

dependents on their parents, who died after their retirement as government servant

on fulfilment of various other conditions as prescribed in the G.O.Ms.No.315

dated 07.10.2010. All the petitioners drawing family pension basing on the

recommendations of the concerned department, in which their parents served and

retired thereafter. The details of grant of pension in writ petition No.19671 of

2020 are given hereunder in the table.

Rule 50 of the Andhra Pradesh Revised Pension Rules, 1980 contemplates the

scheme of family pension payable to the family members of the retired

Government Servant. Rule 50 (12) (b) defines family in relation to the

Government Servant. As per the said scheme, the family of the deceased

Government Employee either retired or in service entitled to monthly family

pension as prescribed under the Rules. The said Rule contemplates various types

of family members eligible for Family Pension. While it is so, the Government of

Andhra Pradesh vide G.O.Ms.No.438 GA (Spl A) Department, dated 07.07.2008

was pleased to constitute Ninth Pay Revision Commission. The said commission

after due consideration of the existing Family Pension Rules and orders of

Government of India vide O.M.F No.38/37/2008-P&PW(A), dated 02.09.2008 of

Ministry of Personal and Public Grievances and Pensions, Department of Pension

and Pensioners welfare, New Delhi and requests of various associations has made

certain recommendations in respect of sanction of family pension. The said

recommendations are reproduced in Para No.3 of G.O.Ms No.315, Finance

(Pension-1) Department, dated 07.10.2010. Basing on such recommendations, the

Government of Andhra Pradesh has divided the eligible beneficiaries of family

pension into two categories as mentioned in Para No.5 of the above mentioned

G.O. Now, in the present cases, the petitioners herein fall under Category-II,

Clause-I and were securing family pension granted under various orders. The

Government of Andhra Pradesh while issuing G.O.Ms.No.315, Finance (Pension-

1) Department, dated 07.10.2010 has prescribed a condition to the effect that the

family pension will be paid up to the date of marriage or re-marriage or till the

date she starts earning or up to the date of death whichever is the earliest, subject

to fulfilment of various other conditions mentioned therein and fulfilment of

procedural requirements. In order to grant family pension to all the categories of

pensioners as contemplated under Para No.4 of the said G.O, the definition of

family as contemplated under Rule 50(12)(b) was also substituted with an

amendment brining all the categories of persons mentioned above under the

definition of family.

In pursuance of G.O.Ms.No.315 Finance (Pension-I) Department dated

07.10.2010 the petitioners herein were drawing pension as per the Rules

applicable. While it is so, respondent No.1 herein issued impugned

G.O.MsNo.152 Finance (HR III - Pension) Department, dated 25.11.2019 brining

certain amendments to the eligibility criteria to the persons falling under

Category-Il prescribing the age limit up to 45 years and also children of

pensioners becoming majors on completion of 18 years as bar for drawing

pension, the said amendment is given retrospective effect from issue of G.O.Ms

No. 315, Finance (Pension-1) Department, dated 07.10.2010. The said

amendment prescribing the age limit and also children attaining majority as on the

date of eligibility as bar for drawing pension with retrospective effect is without

any rationale basis and whimsical. Most of the petitioners were granted family

pension as per G.O.Ms.No.315 Finance (Pension-I) Department dated 07.10.2010

even after completion of 45 years as there was no such condition prescribed in the

said G.O. Any statutory benefits cannot be given retrospective effect as held by

various decisions of the High Court as well as Supreme Court of India from time

to time for the reason that the rights accrued under a particular statute cannot be

taken away by amending the statute with retrospective effect. All the amendments

to the statues are presumed to be effective prospectively unless it is specifically

made retrospectively. G.O.Ms.No.152 dated 25.11.2019 was issued amending the

eligibility criteria with retrospective effect specifically under para No.7 of the said

G.O. is beyond the amending powers of the Government as it takes away the right

accrued under G.O.Ms.No.315 dated 07.10.2010. The retrospective amendments

to the statues can only be made with regard to procedural laws but not the

substantial laws which confer certain rights to the citizens. Therefore, the said

G.O. is nothing but whimsical and capricious apart from highly arbitrary and

beyond the amending power of the State, resulting in violation of Article 14 and

21 of the Constitution of India. G.O.Ms.No.152, dated 25.11.2019 is also illegal

and arbitrary for yet another reason that, it also result in unreasonable

classification of the dependant widowed or divorced daughters of retired

employees basing on the age without any rational basis or object sought to be

achieved. In fact such classification goes contrary to very object of the scheme

without any intelligible differentia. It is necessary to mention here that, a

widowed or divorced daughter of a retired servant who are dependents on their

parents cannot be classified on the basis of age or on the basis of age of their

children, unless such dependents become self sufficient for their livelihood either

by way of self earnings or earnings of their children. However, the G.O.Ms

No.152, dated 25.11.2019 has been issued brining an amendment to

G.O.Ms.No.315 debarring category-II of the family pensioners by prescribing age

limit for drawing family pension as 45 years and their children completing 18

years. Both the conditions are not only irrational and illogical but also whimsical

and arbitrary. Therefore, classification of divorced/widowed daughters of retired

public servants who are dependents of their parents into two classes without any

nexus to the object sought to be achieved and without any basis is forbidden by

Article 14 of the Constitution of India.

Even assuming but not admitting that amendment brought into force

prescribing the age limit of the family pensioners as 45 years and their children

who becomes majors on crossing 18 years as on the date of eligibility as bar for

drawing pension with retrospective effect by issuing impugned G.O.Ms No. 152,

dated 25.11.2019 without amending the definition of "Family" as defined under

Clause-b of Rule 12 of Andhra Pradesh Revised Pension Rules, 1980 is also

erroneous for the reason that so long as all the widowed/divorced daughters

comes under the said definition, cannot be denied family pension subject to

fulfilment of various other conditions. Therefore, the impugned G.O is

unsustainable.

In all these petitions, the respondents have issued notices in the month of

December, 2019/January, 2020 asking the petitioners herein to furnish the

particulars to regularize the payment of family pension as per the above

mentioned G.O.Ms.No.152, dated 25.11.2019. On receipt of such notice, all the

petitioners are MSM,J WP No.19671_2020 and batch 12 furnished all the

particulars along with necessary documents. After receiving the information and

documents furnished by the petitioners, the respondents No.8, 10, 11 have only

given an intimation vide proceedings dated 03.10.2020, stopping the payment of

family pension with cyclostyled notice to all the petitioners herein without even

issuing a show cause notice or an opportunity and without examining the issue

with objectivity. Therefore, the stoppage of payment of family pension made

under G.O.Ms No. 152, dated 25.11.2019 is unsustainable. Pension is not a

bounty payable on the sweet will and pleasure of the Government. The said term

is not defined in Andhra Pradesh Revised Pension Rule, 1980 and as such

necessarily the petitioners will have to fall back on Article 366(17) of

Constitution of India which defines the terms "Pension" as follows:

"Pension" means, whether contributory or not, of any kind whatsoever,

payable to or in respect of any person, and includes retired pay so payable, a

gratuity so payable and any sum or sums so payable by way of return, with or

without interest thereon or any other addition thereto, of subscriptions to a

provident fund".

Therefore, the pension is being paid out of such subscription and as such it

is a right and its payment does not depend on discretion of the Government as

held by Hon'ble Apex Court as well as High Courts in catena of decisions right

from "Deoki Nandan Prasad v State of Bihar1". The said aspect has been

reaffirmed in "State of Panjab v Iqbal Singh2". Therefore, the Government cannot

debar the petitioners herein from availing family pension on unreasonable and

irrational grounds.

The family pension to the members of Government servants is being paid

out of contributions made by the public servant during his service towards

Provident Fund as can be ascertained from the definition given under Article

366(17) of the Constitution of India and to mitigate the hardship caused to family

members of the retired government servant on their demise. Therefore,

prescribing age limit for the family pensioners and to their children do not

indicate, how such prescription would sub-serve the purpose for which the family

pension is being paid. Therefore, stoppage of family pension to those persons who

crossed 45 years of age would be ridiculous and meaningless for the reason that

the need for resources would increase once they get older by age, in view of

increase in the personal needs and also various health issues. Hence, stoppage of

payment of family pension has virtually driven the petitioners to serious fiscal

crisis to lead their day to day life with human dignity. However, without having

any regard or concern for various aspects of the human life, the impugned

G.O.Ms.No.152 dated 25.11.2019 was issued and the same is quite whimsical and

capricious, requested to set aside same.

At this juncture, the Government issued clarificatory orders vide G.O.Ms.

No.l52, Finance (HR. III- Pension) Department, dated 25.11.2019, providing the

procedural guidelines to sanction family pension to the Widowed/divorced and

unmarried daughter under category - II as amendment to G.O.Ms.No.315 Finance

(Pension -I) department dated 07.10.2010 and G.O.Ms.No.231 Finance (Pension-

I) Department dated 08.08.2008. As per para 5 (1) of the G.O.Ms.No.152 dated

25-11-2019, the restriction of age limit upto 45 years is applicable to the

Widowed/Divorced daughter under category - II as on the eligibility commences

on or after the date of ceasing the eligible family pension to the family members

in the category -I, having no children or with minor children is eligible to receive

family pension upto the date of remarriage/till the date she starts earning/anyone

of her children become Major or upto the date of death whichever is the earliest,

provided they are wholly dependent on the employee/pensioner and these

clarifications are issued to G.O.Ms. No.315 Finance (Pension-I) Department dated

07-10-2010 read with the procedural guidelines issued in G.O.Ms.No. 353,

Finance (P.S.C) Department dated 04-12-2010 and applicability of the above

clarification is with effect from the date of issue of G.O.Ms.No.315, Finance

(Pension-I) Department dated 07.10.2010.

The Government issued further clarification that the Family pension shall

not be discontinued merely on account of attaining the age of 45 years

nonetheless once the Family Pension under Category -II become eligible fulfilling

the criteria, the family pension shall be continued till they become non- eligible

(remarriage/starts earning/children become major) and further, no recovery to be

imposed for the past cases on detection of over payment, if any vide Memo

No.1074035/FINO1- HR0MISC/3/2020-HR-III dated 17-08-2020.

In G.O.Ms.No.152 dated 25.11.2019, the age limit of 45 years and other

conditions are also ordered with effect from the date of issue of GOMs.No.315

dated 07.10.2010. However, the respondents reiterated that the Family pension

shall not be discontinued merely on account of attaining the age of 45 years,

nonetheless once the Family Pensioner under Category -II become eligible

fulfilling all the criteria, the family pension shall be continued till they become

non-eligible (remarriage/starts earning/Children become major) and, no recovery

to be imposed for the past cases on detection of over payment, if any vide Memo

No. 1074035/FIN01- HR0MISC/3/2020-HR-III, dated 17.08.2020. The

Government have issued instructions and clarification vide

Memo.No.1074035/FIN01-HROMISC/3/2020/HR-iii, dated 17.08.2020 to the

effect that

Family pension to the widowed/divorced daughters shall be stopped to

those who were authorized family pension after 45 years of their age. However no

recovery to be imposed for the past cases on detection of over payment, if any. ii)

All the cases of family pension authorized to all widowed/divorced daughters are

to be reviewed for the parameters of non-eligibility (remarriage/starts earning

lively hood/children become major). Once they become non eligible, family

pension shall be stopped immediately. However, no recovery to imposed for the

past cases on detection of overpayments, if any. iii) Family Pension shall not be

discontinued merely on account of attaining the age of 45 years. iv) The eligible

applicant should apply within a period of one year from the date of death of

family pensioner in category (One)-1 as per G.O.Ms.No.152 dated 07.10.2010. In

the absence of date of application in the proposals, the date of forwarding of the

proposals by the pension sanctioning authority should be taken as date of

application.

Finally, it is contended that the Government have provided the benefit of

payment of family pension to the widowed and divorced daughters also vide

G.O.Ms.No.315 dated 07.10.2010 as a policy decision. Taking a lenient view all

the widowed/divorced who 1ead their lives peacefully till the date of issue of the

G.O.Ms.315 have also applied for the benefit. Basing on the G.O. all such person

have got sanctioned and authorized the family pension. To stop ineligible

payment of pensions, the age restriction of 45 years has been fixed vide

G.O.Ms.No.152 dated 25.11.2019 subject to condition with effect from the date of

G.O.Ms.No.315 Finance (Pension-I) Department, dated 07.10.2010. In the instant

case, the orders for stopping of pension to the ineligible family pensioner

(remarriage/starts earning/children become major/commenced after crossing 45

years of age) have been received in the last week of August, 2020 and pension

stopped from September, 2020 payable in October, 2020 in terms of

G.O.Ms.No.l52 Finance (HR.III- Pension) Department dated 25.11.2019 read

with Memo .No.1074035/FINOI-HR0MISC/3/2020-HR-III dated 17.08.2020.

Therefore, the impugned Government Order to the extent of imposing restrictions,

cannot be set aside declaring the same as illegal and arbitrary, requested to

dismiss the writ petitions.

It is further contended that no opportunity was afforded to the petitioners

before stoppage of pension except calling for details by the Treasury department

and stoppage of payment of family pension to the petitioners without affording

reasonable opportunity to explain their difficulties is vioaltive of principles of

natural justice. Issue of G.O.Ms.No.152 Finance (HR.III - Pension) Department

dated 25.11.2019 without taking into consideration, the difficulties being faced by

the widowed or divorced daughters of the deceased employees at the advanced

age and increase of necessities due to old age ailments or otherwise is illegal,

arbitrary and violative of Article 14 and 21 of the Constitution of India besides

irrational and not based on any reasonable classification since the family

pensioners, who are aged 45 years and above the age of 45 years were divided

into two separate classes without any rationale. Therefore, discrimination of

family pensioners based on age is not based on any intelligible differentia and

such discrimination is hit by Article 14 of the Constitution of India. He relied on

certain judgments of Apex Court, which will be referred at appropriate stage.

Learned Government Pleader for Services-I totally supported the action

taken by the State in issuing G.O.Ms.No.152 Finance (HR.III - Pension)

Department dated 25.11.2019 while contending that the issue of G.O.Ms.No.152

Finance (HR.III - Pension) Department dated 25.11.2019 is only clarification of

certain issues sought by the Treasury Department, clarifying issues regarding

payment of family pension to the persons, who crossed 45 years of age and it is

not an amendment to the subsisting rules and guidelines issued under

G.O.Ms.No.315 Finance (Pension-I) Department dated 07.10.2010. Apart from

that, the policy decision taken by the State cannot be lightly interfered with, while

this Court exercising power under Article 226 of the Constitution of India. In

support of his contentions, he placed reliance on two judgments of the Apex Court

viz. "Ekta Shakti Foundation v. Government of NCT, Delhi3" and "Centre for

Public Interest Litigation v. Union of India4"

On the strength of those judgments, it is contended that this Court cannot

interfere with the policy decision taken by the State vide G.O.Ms.No.152 Finance

(HR.III - Pension) Department dated 25.11.2019, requested to dismiss the writ

petitions.

The word 'pension' is not defined anywhere in the Andhra Pradesh

Revised Pension Rules, 1980 or any other rules relating to payment of pension

except under Article 366 (17) of the Constitution of India. In view of the

undisputed facts, it is relevant to refer to various provisions of Constitution and

other allied laws. The word "Pension" is defined under Article 366(17) of the

Constitution of India and it reads as follows: "pension means a pension, whether

contributory or not, of any kind whatsoever payable to or in respect of any person,

and includes retired pay so payable, a gratuity so payable and any sum or sums so

payable by way of the return, with or without interest thereon or any other

addition thereto, of subscriptions to a provident fund" The definition of

"pension:" as given in Article 366(17) is not all pervasive. It is essentially a

payment to a person in consideration of past services rendered by him. It is a

payment to a person who had rendered services for the employer, when he is

almost in the twilight zone of his life. (vide Kerala State Road Transport

Corporation v. K.O. Varghese5) Though Revised Pension Rules are in force in the

State of Andhra Pradesh, the word "Pension" is not defined in the Rules. Thus, in

view of the definition of "Pension", it is an amount payable to a retired employee

for the past service rendered by him to the State. Such pension is the livelihood to

a person who is in twilight or at the dawn of life. If, for any reason, the pension is

not paid, it is hardly difficult to survive for the rest of the life, incurring various

expenditures at the old age whose health becomes deteriorated on account of

advanced age and thereby it is imperative to incur substantial amount for their

medical necessities and maintenance. However, the State is competent to stop

payment or deduct pension of the state employees or their dependents by authority

of law for the public purpose. On account of stoppage of payment of pension to

divorced/widowed daughter en masse without any ground mentioned in the

counter affidavit filed by the State is not justifiable action. 'Pension' can be

deferred/withheld or stopped only in certain circumstances enumerated under

Rule 9 of the Andhra Pradesh Revised Pension Rules, 1980 and it reads as follows

9. Right of Government to withhold or withdraw pension :- 1 (1) The

Government reserves to themselves the right of withholding a pension or gratuity,

or both, either in full or in part, or withdrawing a pension in full or in part,

whether permanently or for a specific period and of ordering recovery from a

pension or gratuity of the whole or part of any pecuniary loss caused, to the

Government and to the local authority if, in any departmental or judicial

proceedings the pensioner is found guilty of grave misconduct or negligence

during the period of his service, including service rendered upon re-employment

after retirement : Provided that the Andhra Pradesh Public Service Commission

shall be consulted before any final orders are passed. 1 ["However, consultation

with Andhra Pradesh Public Service Commission is not necessary, when the

pensioner is found guilty in any judicial proceedings".] Provided further that a

part of pension is withheld or withdrawn, the amount of such pension shall not be

reduced below the limit specified in sub-rule (5) of Rule 45] Provided also that

the penalty of withholding of entire pension or gratuity or both may be imposed

against the retired Government servant upon being found guilty or upon

conviction in a court of law for the offences of grave charges namely proved cases

of misappropriation, bribery, bigamy, corruption, moral turpitude, forgery,

outraging the modesty of women and misconduct." (2)(a) The departmental

proceedings referred to in sub-rule (1), if instituted while the Government servant

was in service whether before his retirement or during his re-employment, shall,

after the final retirement of the Government servant, be deemed to be proceedings

under this rule and shall be continued and concluded by the authority by which

they were commenced in the same manner as if the Government servant had

continued in service. Provided that where the departmental proceedings are

instituted by an authority subordinate to the State Government, that authority shall

submit a report recording its findings to the State Government.

The Central Civil Services Conduct Rules are also provides payment of

pension to the widowed daughter and divorced daughter. But the rules are silent

as to what is the meaning of pension. However, a bare look at the definition of

pension under Article 366 (17) of the Constitution of India, it is an amount

payable by an employer to an employee or in respect of any person, and includes

retired pay so payable. The word employed in the definition "in respect of any

person" assumes importance for interpreting the word "family pension". Pension

is being paid on retirement to a Government servant for the services he rendered,

but in view of the language employed in clause (17) of Article 366 of the

Constitution of India, the amount whatever payable to any person includes

pension payable to the deceased pensioner. 'Any person' refers to dependents on

deceased pensioner. Therefore, the inclusive definition of pension under Article

366 (17) of the Constitution of India covers family pension also. The definition of

pension under Article 366(17) of the Constitution of India is not pervasive. It is

essentially a payment to a person in consideration of past services rendered by

him/her or to his/her dependents. It is a payment to a person who has rendered

service for the employer, when he is almost in the twilight zone of his life.

Pension is not only compensation for loyal service rendered in the past, but it has

also a broader significance, in that, it is a measure of socio-economic justice

which inheres economic security in the field of life when physical and mental

powers start ebbing corresponding to the ageing progress, and, therefore, one is

required to fall back on savings. One such saving in kind is when you gave your

best in the heyday of life to your employer for which in days of invalidity,

economic security by way of periodical payment is assured. The term has been

judicially defined as a stated allowance or stipend made in consideration of past

service or a surrender of rights or emoluments to one retired from service. Thus,

the pension payable to an employee is earned by rendering long and sufficient

service and therefore can be said to be a deferred portion of the compensation for

service rendered. Pension is not a bounty nor a matter of grace depending upon

the sweet will of the employer and it creates a vested right subject to the statute, if

any, holding the field. Pension is not an ex gratia payment, but is a payment for

the past service rendered. It is a social welfare measure rendering

socio economic justice to those who in the heyday of their life ceaselessly toiled

for employers on an assurance that in their ripe old age they would not be left in

lurch. (See: "Kerala State Road Transport Corporation v. K.O.Varghese" (referred

above)

It was also held in the said judgment that in a strict sense, pension is not a

matter of contract and is not founded on any legal liability; it is a mere bounty or

gratuity 'springing from the appreciation and consciousness of the sovereign' and

it may be given or withheld at the discretion by the sovereign. It may be bestowed

on such persons and on such terms as the law-making body of the Government

prescribes and it is, at the most, an expectancy granted by the law (See: State of

Kerala v. M.Padmanabhan Nair6) Pension is akin to right to property and it is

correlated and has a nexus with the salary payable to the employee as on the date

of retirement. (Vide: Raghavendra Acharya v. State of Karnataka7").

Though, the word 'pension' is not defined in any rules, on relying on the

inclusive definition of pension, it can be said that the family pension is also part

of pension. State of Andhra Pradesh initially did not include family pension under

the rules for payment of pension to the dependents consequent upon the death of

pensioner, but by introducing Rule 50 in the Andhra Pradesh Revised Pension

Rules, the persons entitled to family pension is categorised into two. The

petitioners in all these petitions would fall within category-II. Under clause 12 (b)

of Rule 50 of the Andhra Pradesh Revised Pension Rules, 1980 the word 'family'

is defined as follows:

12 (b) "family" in relation to a Government servant means- Category - I

(i) wife in the case of a male Government servant, or husband in the case of a

female Government servant. Note 1 :- Wife and husband shall include

respectively judicially separated wife and husband. Note 2 :- Where the

appointing authority decides that for reasons to be recorded in writing a child or

children from a judicially separated deceased female Government servant should

receive the family pension in preference to judicially separated husband of the

deceased Government servant such husband shall not be regarded as covered by

the expression 'family'. (ii) Sons/daughters including such son/daughter adopted

legally before retirement or son/daughter born after retirement, and also including

physically/mentally disabled son/daughter. Category - II: (i)

Unmarried/widowed/divorced daughter, not covered by Category - I above, (ii)

Parents who were wholly dependent on the Government servant when he/she was

alive, provided the deceased employee has left behind neither a widow nor a

child. Note: The period of payment of Family Pension and conditions subject to

which the family pension is payable, shall be as specified in sub-rule (5) above.

Thus, unmarried daughter, widowed/divorced daughters are deemed to be

members of the part of the family and their entitlement is subject to category-I.

Payment of family pension is always subject to clause (5) of Rule 50. According

to clause (5), the period for which family pension is payable is as follows:

"(5) The period for which family pension is payable shall be as follows:-

Category-I: A. (i) In the case of a widow or widower, upto the date of death or

remarriage whichever is earlier. (ii) However, in the case of Childless widow of a

deceased Government employee, the family pension shall continue to be paid

even after her remarriage subject to the condition that the family pension shall

cease once her independent income from all other sources becomes equally or

higher than the minimum family pension prescribed in the State Government from

time to time. The Family pensioner in such case would be required to give a

declaration regarding her income from other sources to the pension disbursing

authority once in every six months. B. (i) In the case of a son until he attains the

age of 25 years or starts earning whichever is earlier, (ii) In the case of daughter

until she attains the age of 25 years or she gets married or starts earning,

whichever is the earliest, (iii) In the case of a son or daughter of a Government

servant is suffering from any disorder or disability of mind or is physically

crippled or disabled so as to render him or her unable to earn a living even after

attaining the ages of Son/Daughter as specified in clause (i) and (ii) above the

family pension shall be payable to such son or daughter for life subject to the

following conditions, namely: (a) If such son or daughter is one among two or

more children of the Government servant, the family pension shall be initially

payable to the Children in the order set out in clause (ii) of sub rule (7) of this

rule, until the last child attains the ages of Son/Daughter as specified in clauses (i)

and Gil above and thereafter the family pension shall be resumed in favour of the

son or daughter suffering from disorder or disability of mind or who is physically

crippled or disabled and shall be payable to him/her for life;

(b) If there are more than one such child suffering from disorder or

disability of mind, or who are physically crippled or disabled, the family pension

shall be paid in the order of their births and younger of them will get the family

pension only after the elder next above him/her ceases to be eligible; (c) 'The

benefit of family pension to physically crippled or mentally disabled children,

however, is only admissible in respect of Government employees who are entitled

to family pension under this rule or under the rules specified in part II of these

rules: (d) where the family pension is payable to such twin children, it shall be

paid to such twin children in equal shares: Provided that when one such child

ceases to be eligible, his/her share shall revert to the other child and when both of

them cease to be eligible, the family pension shall be payable to the next eligible

single child/twin children. [(e) the family pension shall be paid to such son or

daughter through the guardian as if he or she were minor except in the case of the

physically crippled son or daughter who has attained the age of majority.; (f) the

handicap is of such a nature so as to prevent him or her from earning his or her

livelihood and the same shall be evidenced by a certificate obtained from a

Medical Board. The pension sanctioning authority has to endorse the earning

capacity of claimant based on the certificate issued by the Medical Board while

sanctioning the pension.;) (g) the person receiving the family pension as guardian

of such son or daughter, shall produce every three years a certificate from a

medical officer not below the rank of a Civil Surgeon to the effect that he or she

continues to suffer from disorder or disability of mind or continues to be

physically crippled or disabled. Explanations - (i) The family pension payable to

such son or daughter under this sub-rule shall be stopped if he/she starts earning

his/her livelihood. (ii) The family pension payable to such daughter under this sub

rule shall be stopped from the date she gets married; (iii) In such cases, it shall be

the duty of the guardian to furnish a certificate to the treasury or bank, as the case

may be, every month to the effect that : a. He/she has not started earning his/her

livelihood; b. In the case of a daughter, that she has not yet married Category-II :

A. In the case of Unmarried/ widowed/ divorced daughter, not covered by

Category-1 above, upto the date of marriage/ remarriage or till the date she starts

earning or upto the date of death whichever is the earliest, provided they are

wholly dependent on the employee/pensioner. B. In the case of Parents who were

wholly dependent on the Government servant when he/ she was alive, upto the

date of death, provided the deceased employee has left behind neither a widow

nor a child. NOTE (1):-Family Pension to unmarried/widowed/divorced daughters

and dependent parents specified in Category-II, shall be payable only after the

other eligible family members in Category-I have ceased to be eligible to receive

family pension and there is no disabled child to receive the family pension. NOTE

(2):-Grant of family pension to children in respective categories shall be payable

in order of their date of birth and younger of them will not be eligible for family

pension unless the next above him/her has become ineligible for grant of family

pension in that category. NOTE (3) :-The income criteria for dependency will be

the minimum family pension along with dearness relief thereon."

The Rules specifies the persons who are entitled and who are part of

family. Those rules are framed by exercising power under Article 309 of the

Constitution of India. Similarly, in CCS (Pension) Rules, 1972 permits payment

of family pension to unmarried, widowed/divorced daughters until she gets

married or remarried or until she starts earning her livelihood, whichever is

earlier. The family pension is payable to the unmarried/widowed/divorced

daughters above the age of 25 years, after all unmarried children have attained the

25 years of age or started earning their livelihood whichever is earlier. If the

deceased government servant/pensioner has survived by any disabled child, the

widowed/divorced/unmarried daughter will be eligible to receive family pension

only after the turn of disabled child (vide: DoP and PW OM 1/13/09-P&PW dated

11.09.2013). Thus, the divorced or widowed daughters are eligible for family

pension. As seen from the material on record, the Andhra Pradesh Revised

Pension Rules were framed only by exercising power under Article 309 of the

Constitution of India as these rules pertaining to service conditions of

Government employees to claim pension after retirement since family pension is

now welfare scheme framed to provide relief to the widowed spouse and children

of deceased employee or pensioner, including widowed or divorced daughter. The

eligibility to claim family pension and the procedure for payment of family

pension is totally governed by the rules framed by the State legislature known as

the Andhra Pradesh Revised Pension Rules 1980. These rules are statutory in

nature. There is no dispute in adopting the rules for payment of family pension

since both the petitioners and respondents explained in their respective pleadings

as to how the rules for payment of pension to widowed daughter and divorced

daughter came into force. However, by issuing the present impugned

G.O.Ms.No.152 Finance (HR.III - Pension) Department dated 25.11.2019

exercising power under Article 162 of the Constitution of India disabling the

widowed daughters/divorced daughters to claim family pension by imposing

certain restrictions.

In the present case, the Andhra Pradesh Revised Pension Rules, 1980 are

statutory in nature as those rules were framed by exercising power under Article

309 of the Constitution of India, whereas the impugned G.O.Ms.No.152 Finance

(HR.III - Pension) Department dated 25.11.2019 was issued by exercising power

under Article 162 of the Constitution of India by way of executive clarification.

Turning to the facts of the present cases, the Andhra Pradesh Revised Pension

Rules, 1980 did not impose any restriction to claim family pension by

widowed/divorced daughter of the deceased retired employee under Rule 50, but

based on clarification sought by Treasury department, executive instructions came

to be issued vide G.O.Ms.No.152 Finance (HR.III - Pension) Department dated

25.11.2019, which is impugned in the present writ petitions. According to learned

Government Pleader for Services-I, it is only a clarification by the executive, in

view of the request made by the Director of Treasuries and it is not a law passed

by the State legislature. When the impugned Government Order is analysed, there

is any amount of inconsistency in different paragraphs. At one stage, it is stated

that it is clarification and in another paragraph it is stated that it is an amendment.

It appears that the administrative authority, who passed the Government Order, is

not sure whether it is a clarification or amendment proposed to the Andhra

Pradesh Revised Pension Rules, 1980. The G.O.Ms.No.152 Finance (HR.III -

Pension) Department dated 25.11.2019 was totally ill drafted by the authorities by

exercising power under Article 162 of the Constitution of India. By way of

clarification or by way of proposed amendment to the rules in view of the

inconsistency pointed before this Court, the widowed daughter/divorced daughter,

who are entitled to claim family pension without any restriction, except

restrictions mentioned in Rule 50 of the Andhra Pradesh Revised Pension Rules,

1980, disability is created by executive instructions is a serious illegality and by

the executive instructions impugned in the writ petition, the widowed

daughter/divorced daughter of the deceased retired government servant, cannot be

deprived of their right to property. As discussed above, executive instructions i.e.

G.O.Ms.No.152 Finance (HR.III - Pension) Department dated 25.11.2019 will not

override or prevail over the Andhra Pradesh Revised Pension Rules, 1980, issued

by exercising power under Article 309 of the Constitution of India.

n "Delhi Transport Corporation v. D.T.C. Mazdoor Congress47", the

Supreme Court while reiterating the principle observed that the right to life

includes right to livelihood. The right to livelihood therefore cannot hang on to

the fancies of individuals in authority. Income is the foundation of many

fundamental rights. Fundamental rights can ill-afford to be consigned to the limbo

of undefined premises and uncertain applications. That will be a mockery of them.

The Apex Court in various judgments interpreted the right to livelihood is a part

of right to life under Article 21 of the Constitution of India and it is relevant to

refer the principle in "M. Paul Anthony v. Bharat Gold Mines Limited48, the

Apex Court held that when a government servant or one in a public undertaking is

suspended pending a departmental disciplinary inquiry against him, subsistence

allowance must be paid to him. The Court has emphasized that a government

servant does not loose his right to life. However, if a person is deprived of such a

right according to the procedure established by law which must be fair, just and

reasonable and which is in the larger interest of people, the plea of deprivation of

the right to livelihood under Article 21 is unsustainable.

Thus, in view of the law laid down by the Apex Court in various

judgments (referred supra), widening the meaning of word 'right to life' includes

'right to livelihood', right to livelihood is a fundamental right, and it is an integral

part of right to life guaranteed under Article 21 of the Constitution of India.

The major contention of the petitioners from the beginning is that, non-

payment of pension as stated above, is contravention of Article 300-A of the

Constitution of India. No doubt, as per Article 300-A of the Constitution of India,

no citizen of India be deprived of his/her right to property, except by authority of

law. As pension or family pension form part of property of an individual to attract

Article 300-A of the Constitution of India, such right cannot be taken away except

by authority of law. On a bare look at Article 300-A of the Constitution of India,

any citizen of India cannot be deprived of their right to property, except by

authority under law. That means a property of any citizen of India cannot be taken

unless the State is authorized to do so. In "Shapoor M. Mehra v Allahabad

Bank49", wherein Bombay High Court opined that retiral benefits including

pension and gratuity constitute a valuable right in property.

In "Dr.Smt. Manmohan Kaur v. The State of M.P.50" the Gwalior Bench

of Madhya Pradesh High Court had an occasion to deal with non-payment of

pensionary benefits, held that deferment or non-payment of salary or part of it is

illegal. In another judgment of High Court of Madhya Pradesh in "Suresh Kumar

Dwivedi and others v. State of Madhya Pradesh51" held that the dignity of a man

is inviolable, as enshrined in Article 21, which cannot assured unless his

personality is developed, and the only way to do that is to educate him. Thus, the

Directive Principles which are fundamental in the governance of the Country,

cannot be isolated from the fundamental rights guaranteed under Part III of the

Constitution. These principles have to be read into the fundamental rights. Both

are supplementary to each other. Therefore, in the absence of any authority of

law, stoppage of family pension amount to violation of constitutional right

guaranteed under Article 300-A of the Constitution of India, since such stoppage

is without any authority of law. At this stage, it is relevant to refer the meaning of

'authority of law'. The Apex Court while considering the word used 'law' under

Article 13 and 300-A of the Constitution of India, construed the meaning of word

"Law" not only with reference to Article 13 of the Constitution of India, but also

with reference to Article 300-A and 31C of the Constitution of India. The Apex

Court in "Bidi Supply Co. Vs. Union of India52" and "Edward Mills Co.Ltd. Vs.

State of Ajmer53" held that the law, in this Article, means the law made by the

legislature and includes intra vires statutory orders. The orders made in exercise

of power conferred by statutory rules also deemed to be law. (Vide: State of M.P.

Vs. Madawar G.C.54") The Law does not, however, mean that an administrative

order which offends against a fundamental right will, nevertheless, be valid

because it is not a "law" within the meaning of Article 13 (3) of the Constitution

of India (Vide: Basheshar Nath Vs. C.I.T.55 and "Mervyn Coutindo Vs.

Collector, Customs Bombay56")

No doubt, as discussed above, right to livelihood of a person can be

deprived by authority of law. Article 300-A of the Constitution of India, protects

right of an individual, but such right in the property can be deprived of save by

authority of law. The right to property is now considered to be not only a

constitutional or a statutory right, but also a human right. Though, it is not a basic

feature of the constitution or a fundamental right, human rights are considered to

be in realm of individual rights, such as the right to health, the right to livelihood,

the right to shelter and employment etc. Now, human rights are gaining an even

greater multi faceted dimension. The right to property is considered, very much to

be a part of such new dimension (Vide: Tukaram Kanna Joshi Vs. M.I.D.C.59)

Right to property of a private individual, though, permitted to be deprived of, it

must be by authority of law. Still, Article 25 (1) of the Universal Declaration of

Human Rights recognized such right in property as human right, which reads as

follows:

"Everyone has the right to a standard of living adequate for the health and

wellbeing of himself and of his family, including food, clothing, housing and

medical care and necessary social services, and the right to security in the event of

unemployment, sickness, disability, widowhood, old age or other lack of

livelihood in circumstances beyond his control."

In view of the law laid down by the Apex Court in catena of perspective

pronouncements, the impugned G.O.Ms.No.152 Finance (HR.III - Pension)

Department dated 25.11.2019, which takes away the right of the petitioners in all

these petitions to claim family pension cannot be given retrospective effect. There

is no vested right to the petitioners to claim family pension as the legislature is

competent to make amendments to the rules by exercising power under Article

309 of the Constitution of India. However, no further discussion is necessary on

this aspect.

Some of the petitioners also claimed interest on the arrears of family

pension. In fact, the Division bench of this Court has ordered payment of interest

at the rate of 12% per annum on pension in "Dinavahi Lakshmi Kameswari v. The

State of Andhra Pradesh" (to which I am a member) (referred supra), but the

Apex Court in "State of Andhra Pradesh v. Dinavahi Lakshmi Kameswari"

(Special Leave to Appeal (c) No.12553 of 2020) scaled down the interest to 6%

from 12% while conforming the order of this Court, the same is applicable to the

present facts of the case. Therefore, based on the judgment of the Apex Court in

the judgment referred supra, interest at the rate of 6% on the arrears of family

pension payable to the petitioner is hereby awarded directing the respondents to

pay arrears of family pension together with interest at 6% per annum. In view of

my discussion in earlier paragraphs, I find that the executive instructions will not

override or prevail over the statute or statutory rules framed exercising power

under Article 309 of the Constitution of India and that the G.O.Ms.No.152

Finance (HR.III - Pension) Department dated 25.11.2019 is violative of Articles

14, 21 and 300-A of the Constitution of India.

In the result, the writ petitions are allowed setting aside the

G.O.Ms.No.152 Finance (HR.III - Pension) Department dated 25.11.2019 making

it clear that the respondents shall continue to pay the family pension to the

petitioners as paid to them earlier. Further, the State Government/respondents are

directed to pay the arrears of family pension to the petitioners with interest at the

rate of 6% per annum, from the day on which the family pension was stopped to

them, within two (2) months from today. No costs.

Therefore, it is necessary to extract the G.O.Ms.No.152 Finance (HR.III -

Pension) Department dated 25.11.2019, which is as follows:

But there is no response. The same is pending in the 2nd

respondent office. In response to the same, the 5th respondent

It is further submitted that the petitioner again

and the petitioenr is the first daughter. of

petitioner's mother while working as Office Subordinate at

Veterinary Dispensary, Jami, Vizianagarm District, expired on

24.05.2021. After death of her mother, the petitioner became

penniless, due to financial crunch, the petitioner along with her

family struggling for bread and butter, she made a representation

to the respondent authorities seeking compassionate appointment

and the same was rejected by the respondent authorities vide

Memo No.1307/B/2021, dated 23.11.2021 on the ground that she

is married.

It is further stated that in fact the petitioner and her

husband are not having source of income except private daily

works and to that effect on 19.07.2021 the Tahsildar,

Vizianagaram, has given no earning member certificate. In fact it

is not in dispute that the petitioner is only the legal heir of her

deceased mother and to that effect also the Tahsildar,

Vizianagaram has given certificate on 19.06.2021. The petitioner

has completed B.Sc degree. The respondents are relying on the

Memo issued vide Govt. Memo No.80863/Service.G/A1/2005-1,

G.A.D (Service.G), dated 06.08.2005 to reject her request for

appointment on compassionate grounds. Hence, the present writ

petition.

3. No counter affidavit is filed by the respondents till today

and adjourning the matter for filing counter affidavit, again learned

Government Pleader appearing for the respondents sought time for

filing counter affidavit. It appears that the respondents did not

choose to file counter affidavit and failed to comply with the Rule

12(1) of the Writ Proceedings Rules, 1977. Following the decision of

erstwhile High Court of Andhra Pradesh in "J. Ramachandraiah

Vs. Government of Andhra Pradesh and Others"2 this Court

finds that the respondents violated the Rule 12 of the Writ

Proceedings Rules, 1977. Therefore, this Court without expecting

counter affidavit by the respondents, decided to dispose of the

matter.

4. Heard learned counsel appearing for the petitioner and

learned Government Pleader for Services-I appearing for the

respondents.

5. Learned counsel placed a decision of a Division Bench

in Commissioner of Police and Others v. K.Padmaja3 and

also a recent judgment of a learned Single Judge in

W.P.No.28931 of 2021 dated 20.01.2022 and urges that the

Writ Petition deserves to be allowed, in the light of the above

referred judgments.

6. Per contra, the learned Assistant Government Pleader

submits that the case of the petitioner is not considered by the

authorities as the petitioner is a married daughter, who is not

dependent on her deceased mother and as such the proceedings

2012 SCC Online AP 730: (2012) 4 ALD 366

2013 (4) ALT 501

impugned in the Writ Petition cannot be found fault with. He

submits that the cause of death of the petitioner's mother is not

mentioned in the Death Certificate produced by the petitioner

and therefore she is not entitled for the benefit. The learned

Assistant Government Pleader also places reliance on the Memo

No.1307/B/2021, dated 23.11.2021 issued by the Government

of A.P. Department of Agriculture Joint Directors (PA

Department), Vizianagaram and contends that after examining

the proposals sent for compassionate appointment orders, the

Government issued their Government Memo No.80863/

Service.G/A1/2005-1, G.A.D (Service.G), dated 06.08.2005, that a

compassionate appointment will be made to the married

daughter to look after the spouse of the deceased government

employee. But, when the spouse of a Government employee is

not alive, the intention to employ a married daughter does not

work. The learned Assistant Government Pleader also places

reliance on the judgment of the Hon'ble Supreme Court in Civil

Appeal Nos.9280-9281 of 2014 in N.C.Santosh v. State of

Karnataka and Others4. Accordingly, he prays for dismissal of

the Writ Petition.

7. Considered arguments of both the learned counsel and

perused the material on record. The only point that falls for

consideration is, as to whether the petitioner is entitled for

compassionate appointment and if so, the impugned orders are

liable to be set aside?

(2020) 7 SCC 617

8. There is no dispute that the petitioner is the daughter

of the deceased Government Employee. The family member

Certificate dated 19.06.2021 and No-earning Member Certificate

dated 19.07.2021 issued by the concerned Tahsildar,

Vizianagaram, reveals the status of the petitioner as legal heir of

the deceased and that the petitioner has no income from any

source as her husband is an un-employee and she has

depended upon her mother for her livelihood till her demise and

that the petitioner is non-earning member.

9. The Government vide G.O.Ms.No.612, General

Administration (SER-A) Department dated 30.10.1991 provided

that where the deceased employee does not have any male child

but leaves behind him/her, a married daughter and unmarried

minor daughter, the choice of selecting one of them for

appointment under the Social Security scheme shall be left to

the spouse of the deceased. Thereafter, the Government vide

G.O.Ms.No.350 dated 30.07.1999, clarified that when there is

only a married daughter to the deceased Government employee

without older or younger brothers or sisters and the spouse of

the deceased Government employee is not willing to avail the

compassionate appointment, such married daughter may be

considered compassionate appointment, provided she is

dependent on the deceased Government employee and subject

to satisfying the conditions and instructions issued on the

scheme from time to time.

10. The above said Government Order dated 30.07.1999

were considered by the Hon'ble Division Bench in K.Padmaja's

case referred to supra. The Hon'ble Division Bench while

dealing with the Writ Petition filed by the Department against

the orders passed by the erstwhile A.P.A.T., in O.A.No.6938 of

2012, considered similar contentions advanced and dismissed

the Writ Petition confirming the orders in favour of the applicant

for compassionate appointment. In the said judgment, the

Hon'ble Division Bench, inter alia, opined that even if the

applicant is residing in a separate house, that by itself is not

ground to reject the claim of the appointment. The Hon'ble

Division Bench also held that merely because family pension is

paid to the wife of the deceased, the same is not a ground to

deprive the benefit of compassionate appointment under the

scheme notified by the Government for the children of the

deceased, who dies in harness.

11. In view of the above legal position, the contentions of

the learned counsel for the petitioner deserves to be upheld and

the submissions made by the learned Assistant Government

Pleader are liable to be rejected.

12. In Ch.Damayanthi's v. APSRTC's case vide

W.P.No.10340 of 2014, a learned Single Judge of this Court had

extensively dealt with the matters pertaining to compassionate

appointments visa-a-vis the claims of the married daughters

and allowed the Writ Petition, inter alia, holding as follows:

"41. In the present case the deceased employee left behind his wife and the petitioner only. There are no brothers or sisters to the

petitioner only. There are no brothers or sisters to the petitioner. The claim of the mother of the petitioner for compassionate appointment was rejected. Now after demise of her father, it is the responsibility cast upon the petitioner to take care of her old aged and widow mother, as she is the only daughter to her parents and there is nobody to take care of her mother for her remaining life. Due to this reason also, the case of the petitioner has to be considered, besides, the petitioner and her husband not having any permanent source of income for their survival.

42. If the petitioner, who has to take care of her widowed mother, is not given compassionate appointment, the whole family will be pushed to indigenous condition and to penury and the core aim and object of the compassionate appointment scheme will be defeated. petitioner As such, this Court hold that the is entitled for compassionate appointment under the "Bread Winner Scheme".

Above referred judgments, in the considered opinion of

this Court, applies to the facts of the present case.

13. Insofar as the judgment relied on by the learned

Assistant Government Pleader in N.C.Santosh case referred to

supra, the Hon'ble Supreme Court was dealing with

compassionate appointments as provided in Karnataka Civil

Services Rules, 1996. The Hon'ble Supreme Court in the said

judgment inter alia, opined that the norms prevailing on the

date of consideration of the application should be the basis for

consideration of claim for compassionate appointment. The said

judgment has no application to the facts of the present case.

14. It may not be out of place here to refer to a judgment

in Bhuvaneswari V.Puranik5. The learned Judge while dealing

with the object of compassionate appointments succinctly dealt

with the legal position and allowed a Writ Petition, wherein a

2020 SCC Online Kar 3397

challenge was laid to Rule 2(1) (a) (i), Rule 2(1) (b) and Rule 3(2)

(i) (c) of the Karnataka Civil Services (Appointment on

Compassionate Grounds) Rules, 1996, holding inter alia as

follows:

"If the marital status of a son does not make any difference in Law to his entitlement for seeking appointment on compassionate grounds, the marital status of a daughter should make no difference, as the married daughter does not seize to be a part of the family and Law cannot make an assumption that married sons alone continue to be the part of the family."

15. In the aforementioned view of the matter, the

impugned proceedings vide Memo dated 23.11.2021 in the Writ

Petition is liable to be set aside.

16. Accordingly, the Writ Petition is allowed and the

impugned proceedings vide Memo No.1307/B/2021, dated

23.11.2021 of the 3rd respondent is hereby set aside. The

respondents are directed to consider the case of petitioner for

compassionate appointment, in any suitable post, within a

period of six (6) weeks from the date of receipt of a copy of this

order. No costs.

As a sequel, interlocutory applications, if any pending,

shall stand closed.

______________________________ DR. K. MANMADHA RAO, J.

Date : 18-08-2022 Gvl

HON'BLE DR. JUSTICE K. MANMADHA RAO

WRIT PETITION No.23424 OF 2022

Date : 18.08.2022

Gvl